An Impeachment Trial Risks Too Much to Make a Legal Point That Will Be Undermined Anyway by Trump’s Acquittal, by Jeffrey C. Isaac

Jeffrey C. Isaac is the James H. Rudy Professor in the Department of Political Science at Indiana University. Professor Isaac’s research is in the area of political theory.

Donald Trump was the worst president in the history of the republic. During his all-too-long tenure in office he committed numerous “high crimes and misdemeanors.” This was documented in the Mueller Report, the House impeachment inquiry last January, and most recently in the real-time footage of the January 6 assault on the U.S. Congress that capped a months-long effort to overturn the democratic and Constitutionally-prescribed November 2020 election.

On the merits, Trump deserved Senate conviction on House impeachment charges last February, and he deserves Senate conviction on House impeachment charges now.

Alas, politics is not about “just deserts,” nor is it about the sincere application of constitutional norms and laws. If it were, we would not be in the serious and post-traumatic situation we now are in.

It is impossible to think politically about this impeachment trial without recognizing that we are dealing here with an only recently-departed autocrat, Trump, whose “crimes” against the republic were made possible by his mediatic creation and mastery of an enormous mob, and also by the cooperation of a Republican party that is hostile to constitutional principle and majority rule, and is complicit in grievous assaults on democracy. It is tempting to imagine that the “remedy” for this is the sober and judicious presentation of the facts and the law before an august representative body like the Senate, whose members might then judge wisely and responsibly. But that is naïve. The Senate is not such a body. And fully half of its members have been in one way or another involved in the ”high crimes” they might now be tasked with judging.

It is politically irresponsible to bracket out the political context and the likely political consequences of an impeachment trial.

Last week I argued in The Constitutionalist that I believe a Senate impeachment trial of Trump would be a mistake because the actual costs and opportunity costs of a trial far outweigh the benefits of a conviction, even on the heroic assumption that a conviction is possible.

The past few days have reinforced my concerns.

The best argument for a trial has been forwarded by my colleague Jeffrey Tulis: that, regardless of the chances of conviction, Trump’s “high crimes” on January 6 are too serious to be allowed to fade from public view, and a trial would represent a “national reckoning” with the contradiction between Trump’s actions and the Constitution, and such a “reckoning” is necessary to publicly empower constitutional values and strengthen democracy.

I agree that such a “reckoning” could be a necessary element of moving forward politically. But I am now more convinced that a Senate trial is not the venue for it.

And the reason is simple: it is now seems crystal clear that the Republican Congressional leadership, in both the House and the Senate, remains committed to exculpating Trump and to obstructing any and all Democratic efforts.

In the case of House Minority Leader Kevin McCarthy, this is obvious. But it is equally true of Senate Minority Leader Mitch McConnell. CNN reports today (Friday) that McConnell “wants Trump gone,” and that many Washington Republicans are encouraging him to support Trump’s conviction.

I have no doubt that McConnell wants Trump gone. But this does not mean that he can be counted upon to whip the necessary seventeen-plus Republican Senators to vote for a conviction, or even to vote for conviction himself. And it is not simply that “McConnell proposes delaying impeachment trial until February so Trump team can prepare.” It is McConnell’s ongoing refusal to come to an agreement with Chuck Schumer on the rules governing the Democratic party’s takeover of leadership of the Senate. And it is McConnell’s more general rhetoric.

McConnell’s Senate website yesterday featured this caption: “Biden Administration’s First Day Was Bad News for American Workers,” followed by these words: “The 2020 election was as far from a sweeping mandate for ideological transformation as any election we’ve seen in modern history. The American people stunned the so-called experts with the number of Republicans they sent to the House and the Senate to make sure common-sense conservative values have a powerful say in this government.” What followed was a denunciation of Biden’s Executive Orders on DACA and amnesty, the National Labor Relations Board, the Paris Climate Accord, etc:, capped by these words:

Now, it’s still early. There is plenty of time for President Biden to remember that he does not owe his election to the far left. The President can and should refocus his Administration on creating good-paying American jobs, not sacrificing our people’s livelihoods to liberal symbolism. Senate Republicans will be ready, willing, and eager to help make that happen.”

McConnell is clear: he is not ready to “reckon” with his party’s obstructionism these past four years—twelve years if you include the Obama presidency—and he is determined to remain the Senate’s “grim reaper.” It is beyond foolish for Democrats to expect otherwise.

Peter Baker’s report in the New York Times’s underscores this: “In Biden’s Washington, Democrats and Republicans are not United on ‘Unity.’” So too does this headline from Politico: “Republicans bludgeon Biden’s big stimulus plan.” There is no reason to expect Republican cooperation on anything major right now, and every reason to expect obstruction and grandstanding. For, as Axios recently reported: “It’s still Trump’s party.”

Only 42 Senators, all Democrats, are on the record in support of conviction in an impeachment trial. The recent posturing of McConnell and other Republicans makes it clear that it is extremely unlikely that a trial would lead to Trump’s conviction. In other words, it is extremely likely that a trial will lead to Trump’s acquittal.

Democratic control of the Senate will surely ensure that a trial would be more substantial than the impeachment trial McConnell rushed last year. But the effective differences will just as surely be marginal. The House Democratic team will present their case. Many Americans will be pleased to see the case presented. And around 40% of Americans will “experience” this process through the lenses of Fox News, NewsMax, Rush Limbaugh, etc., and they will hate it, and “learn” nothing except that Trump their Leader was always right. And perhaps every Democratic Senator and a handful of Republicans will vote to convict, but this will fall short of the required 2/3 majority. And Trump will be acquitted.

The entire process will allow Trump and his allies to denounce “the left,” culminating in a Trumpist “victory lap” after acquittal.

It doesn’t matter that everything behind Trump’s defense and “vindication” is a dangerous lie.

Because in the political world we inhabit—a world in which media, performance, and presentation are everything—dangerous lies will prevail among all of those who we might hope to “educate” about “constitutional values.”

What kind of a “reckoning” would this be?

It would be a disaster.

A sustained trial, even if it took only three to five days, would halt all Congressional legislative business and, after an acquittal, it would serve to further obstruct progress on Biden’s legislative agenda.

It would almost certainly not result in conviction, nor would it result in a Senate vote to bar Trump from future national office—which is possible only after a conviction.

There would thus little value-added to the symbolic reproach already achieved by the House’s impeachment of Trump for the unprecedented second time.

But there would be huge costs. For instead of moving forward resolutely and with full focus on a Democratic legislative agenda that can deliver real benefits and thus build political momentum, Democrats will have diverted attention to Trump and will have accomplished little more than a repeat of last year’s impeachment.

The official “record” will read the same: Impeachment (by Democrats) in the House, and Acquittal (by Republicans) in the Senate.

This would accomplish nothing good legally or symbolically, though it will represent a Democratic “failure” politically.

What good is that?

There is an alternative. Instead of trying Trump in the Senate, the House impeachment charges can be further presented to the public, and to the “bar of history,” outside of the Senate, and with no culminating vote.

Let Jamie Raskin and his colleagues hold three days of hearings on the charges. Let them bring witnesses, and show videos, and produce a powerful, effective presentation—a “show!”—that presents the public with a real “reckoning,” an accounting of Trump’s crimes that is also a “lesson” in constitutional values. These hearings can be open, and surely much of the proceedings would be televised.

But they will not be the spectacle that a Senate trial will be, they will not absorb the entire Congress in the “reckoning” process, and they will not culminate in a vote that will be seen as a failure.

The Senate—which is merely a witness, a jury, to an impeachment trial—does not even need to be involved in this at all. And if these hearings are not formally  organized via a House committee, neither do House Republicans.

Jamie Raskin and friends can perform all of the great constitutional showmanship (and womanship) that they might perform before the Senate, but it would be before the public instead.

Meanwhile, Congress can remain focused on legislation.

The House can quickly re-pass the 2019 “For the People Act” (H.R.1) so that it can then be taken up by the Senate.

And House and Senate Democratic leadership can begin work drafting legislation to implement President Biden’s just-announced $1.9 billion Covid-relief plan so that legislative hearings and bargaining can expeditiously move a bill forward for a vote.

The expeditious passage of these two pieces of legislation would do more to “reckon” with the disasters visited upon the republic by Trump than an ultimately failed Senate trial. Moving forward on these things would enhance the quality of U.S. democracy and, by delivering real benefits to ordinary Americans, would also “demonstrate” that democracy can be made to work for ordinary Americans.

Trump was already defeated by Biden at the ballot box.  Trump was impeached, for a second time, for his autocoup-attempt. While even a Senate conviction could confer no criminal penalties on Trump, Trump the private citizen remains vulnerable to federal, state, and local criminal prosecution, just as he will surely remain mired in civil trials for years.

It would be nice, if possible, to expeditiously try and convict Trump in the Senate and then immediately proceed to a vote to ban him from future national office.

But this is almost certainly not possible.

And so those moralists and legalists who rightly deplore Trump and what he symbolizes ought to focus their attention on what is possible to move the country forward beyond him. This is the best way to advance the cause of political justice while also advancing the cause of reinvigorating democracy.

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